Todd Wallack v. New Bedford, City of - Police Department (SPR 20211891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 12, 2021 SPR21/1891 Lisa Presby Office of the City Solicitor City of New Bedford 133 William Street, Room 203 New Bedford, MA 02740 Dear Ms. Presby: I have received the petition of Todd Wallack of WBUR appealing the response of the New Bedford Police Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On July 6, 2021 and July 12, 2021, Mr. Wallack requested an: electronic log of internal affairs complaints/investigations against sworn officers of the New Bedford Police Department as far back as you maintain the log in your current computer system. Documents showing the names of sworn officers within the New Bedford Police Department who were terminated for misconduct, agreed to resign or retire to resolve misconduct accusations, or resigned or retired with a pending internal affairs investigation since January 1, 2010. The Department provided a response on July 21, 2021. Unsatisfied with the Department’s response, Mr. Wallack petitioned this office and this appeal, SPR21/1891, was opened as a result. Fee estimate – municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lisa Presby SPR21/1891 Page 2 August 12, 2021 Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s July 21st response On July 21, 2021, the Department responded to Mr. Wallack by providing him with a fee estimate “that it will take 19.85 hours to review, redact, and produce the responsive chart.” The Department’s calculation is listed as follows: “(Average of 3 minutes to review and redact each page of the report based on recent experience responding to similar requests for listing of investigations) x (397 pages) = 1,191 minutes. (1.191 minutes) / (60 minutes)= 19.85 hrs. (19. 85 hrs) - (2hrs) = 17.85 hrs total.” In its July 21st response, the Department stated, “[b]efore providing [Mr. Wallack] with the responsive documents, we will need to review them and make any redactions that are required by law. We anticipate that we will need to redact the following information.” The Department listed the following records and information that would require redactions under law: • Victim and victim family information pursuant to M.G.L. Chapter 66, § 106. • Sex victim and rape report information pursuant to M.G.L. Chapter 265, § 24C and M.G.L. Chapter 41, § 970, • Domestic violence reports pursuant to M.G.L Chapter 41, § 9701. • Juvenile Delinquency case information pursuant to Chapter 119, § 60A. • Registry of Motor Vehicle information pursuant to the Driver's Privacy Protection Act, 18 U.S.C. § 2721. • Criminal Offender Record Information pursuant to M.G.L. Chapter 6, § 167. • Medical records pursuant to the HIPPA Privacy Rule, 45 C.F.R. § 164.502(a)(1). The Department explained in the July 21st response that the “actual amount of time it will take the City to review, redact, and reproduce the responsive records might differ from this estimate. The lowest paid employee capable of reviewing and redacting the responsive records is the Legal Services Coordinator in the City Solicitor's Office, whose hourly rate is $27.15. However, we will charge you $25.00 per hour for reviewing and redacting the records. We are therefore seeking payment of $446.25 for reviewing and redacting the records.”

Lisa Presby SPR21/1891 Page 3 August 12, 2021 Based on the Department’s July 21st response, it is unclear why the Department requires the amount of time listed above to produce the requested records and to “review, redact, and produce the responsive chart.” The Department must provide further information on the details regarding the tasks involved, including the time it is allocating to compiling, segregating, redacting and reproducing the requested records. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). The Department must clarify these matters, including the time that is needed to perform segregation and redaction as required by law. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us . Sincerely, ~' ' ' ' ' ' ' . Rebecca S. Murray Supervisor of Records cc: Todd Wallack, WBUR Elizabeth Treadup Pio, Esq. Samantha Hakeem